Ohio Justices Question If Democrats Can Prove Congressional District Gerrymandered By GOP

Ohio state Supreme Court justices on Tuesday asked if Democrats can prove that the state's congressional districts were gerrymandered by Republicans as they heard oral arguments in two lawsuits challenging the new four-year map.

The suits were filed by the National Democratic Redistricting Commission's legal arm, as well as the A. Phillip Randolph Institute and the Ohio offices of the League of Women Voters. Both lawsuits had oral arguments presented online due to a new COVID surge.

Justices questioned why opponents must prove "beyond a reasonable doubt" that the map was gerrymandered and how it is impartial to both Democrats and minority voters. They also asked if legal arguments from the conflict over Ohio's current map, made in 2011, were overruled by Ohio voters' decision to change the state's redistricting procedures under a 2018 constitutional amendment.

"Why would we use that as the starting point, the 2011 map, when clearly the the intervening factor was the vote of the people that demanded that you scrap that kind of analysis and you go with, [that] your guidepost is not to unduly gerrymander the elective maps?" Chief Justice Maureen O'Connor, a possibly crucial swing vote, asked.

Democratic groups and lawyers for voting rights said that the map "'unduly' favors the Republican Party" is irrefutable, which would make it unconstitutional.

Ohio District Gerrymandering Lawsuits
Ohio state Supreme Court justices on Tuesday asked if Democrats can prove that the state's congressional districts were gerrymandered by Republicans as they heard oral arguments in two lawsuits challenging the new four-year map. Above, the Ohio Statehouse on May 16, 2014, in Columbus. (Photo By Raymond Boyd/Getty Images)

Phillip Strach, an attorney for Republican legislative leaders, said the people wanted less partisan districts "and that's absolutely what they got."

"The districts are a win for the people of Ohio," he said. "They got more competitive districts. Seven out of 15—that's a plurality of the districts—are now legit competitive districts, even the experts agree."

Strach said Republicans' expert found that Democratic U.S. Senator Sherrod Brown would have won eight or nine of them.

The A. Phillip Randolph Institute and the Ohio offices of the League of Women Voters surmise the map includes 13 Republican districts—10 safe seats and three "arguably competitive" ones that also favor the GOP—and only two safe Democratic districts. That's at least 67 percent of seats for Republicans, despite their candidates receiving only about 54 percent of votes in statewide races over the past decade, the two groups' lawsuit said.

Meanwhile, the NDRC's constitutional challenge contends the map leans 12-3 in favor of Republicans, although the GOP describes it as 6-2, with the remaining seven districts being competitive.

Ohio and other states were required to redraw their congressional maps to reflect results of the 2020 census, under which Ohio lost one of its current 16 districts due to lagging population.

Ben Stafford, representing the NDRC, pointed to the new map's "efficiency gap," a measure of votes wasted because lines strongly favor one party or the other. A Democrat's vote in a slam-dunk Republican district, for example, or vice versa.

"The 2011 plan was struck down by a federal district court as a partisan gerrymander," he said. "The efficiency gap of that plan was 11 percent. The efficiency gap of this plan is about 23 percent. It's worse."

Stafford said Republicans who drew the new map "cherry-picked" which statewide elections' results they used to determine "competitiveness," and that that line of argument was flawed.

"So competitiveness and partisan fairness are not the same concept," he said. "If Ohio State every year has to spot Michigan a two-touchdown lead, it might make the game more competitive [but] the rules are set up to favor one team over the other, and that's exactly what they've done here."

The plan in dispute sprinted through the Ohio Statehouse last month and passed without Democratic support. It was signed days later by Republican Governor Mike DeWine, whose son, Pat, is one of four GOP justices on the seven-member court.

Because the map got no backing from Democrats, it will hold for just four years, rather than the typical 10.

Both lawsuits target DeWine and the other members of the powerful Ohio Redistricting Commission, rather than the Legislature.

Voters empowered the commission with a potentially pivotal role in approving Ohio's legislative and congressional district maps, but the panel missed its deadline for approving a congressional map without taking a vote. That punted the process back to the GOP-led Legislature, which approved the map despite Democrats' objections.

The Associated Press contributed to this report.